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en-usFree Speechhttps://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 17 Jan 2019 09:36:00 PSTAttorney General Nominee Seems Willing To Let The DOJ Jail Journalists Over Published LeaksTim Cushinghttps://www.techdirt.com/articles/20190115/14592241399/attorney-general-nominee-seems-willing-to-let-doj-jail-journalists-over-published-leaks.shtml
https://www.techdirt.com/articles/20190115/14592241399/attorney-general-nominee-seems-willing-to-let-doj-jail-journalists-over-published-leaks.shtml
Jeff Sessions did everything the president wanted him to do: roll back civil rights investigations, get tough on immigration, amp up the War on Drugs, blame everyone but law enforcement for spikes in crime. It didn't matter. The president shitcanned Sessions because he recused himself from the DOJ's investigation of Trump's Russia-related activities.

Thirty years later, Barr seems just as reluctant to respect the First Amendment. During the confirmation hearing, Sen. Amy Klobuchar lobbed what should have been a softball to the AG nominee. Moving on from the appalling murder of Washington Post journalist Jamal Khashoggi by members of the Saudi government, Klobuchar asked if the Justice Department would jail journalists for doing their jobs.

Instead of a quick "No," or a quickly-qualified "Yes, but only under the most extreme circumstances," Barr responded with a disturbingly long "ummm" and an uncomfortable silence. When Barr finally broke his silence, his answer was worse than his silence.

I can conceive of situations where…you know, as a last resort… and where a news organization has run through a red flag or something like that, knows that they're putting out stuff that will hurt the country… there could be a situation where someone could be held in contempt.

This is bad news for the free press. Jeff Sessions already began laying the groundwork for easier surveillance and prosecution of journalists by the DOJ. The standards alluded to by Barr ("policies in place") have been there for more than two decades. As they stand now, the DOJ has to exhaust all other investigative methods before demanding information from journalists and, if it plans to subpoena news agencies, it has to give them advance notice and work with them to minimize First Amendment intrusions.

Multiple sources familiar with the ongoing DOJ review tell me that it has two main goals. The first is to lower the threshold that prosecutors must meet before requesting subpoenas for journalists’ records; the second is to eliminate the need to alert a media organization that Justice intends to issue a subpoena.

Given Barr's answer here, it's safe to assume he'll pick up where Sessions left off when he becomes attorney general. That's bad news for journalists and bad news for the First Amendment in general. Barr could have reaffirmed the DOJ's commitment to upholding the Constitution but instead indicated the DOJ will prioritize protecting the government over protecting the people it serves.

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]]>getting-nothing-more-here-than-a-changed-nameplatehttps://www.techdirt.com/comment_rss.php?sid=20190115/14592241399Wed, 16 Jan 2019 20:14:00 PSTTurkish Court Jails Journalist For Telling The Truth About A Politician's Offshore Tax ShelterTim Cushinghttps://www.techdirt.com/articles/20190115/07001941391/turkish-court-jails-journalist-telling-truth-about-politicians-offshore-tax-shelter.shtml
https://www.techdirt.com/articles/20190115/07001941391/turkish-court-jails-journalist-telling-truth-about-politicians-offshore-tax-shelter.shtml
Truth is no defense against allegations of defamation -- not in Turkey where criminal defamation law is just one of the government's many weapons deployed against critics. Journalist Pelin Ünker has been sentenced to more than a year in jail by a Turkish court for publishing undeniable facts.

An Istanbul court sentenced the International Consortium of Investigative Journalists’ member to imprisonment for 13 months for “defamation and insult.”

Ünker, who reported that former prime minister Binali Yildirim and his sons owned companies in Malta in the Turkish newspaper Cumhuriyet, was also fined $US1615.

Ünker's reports were drawn from the Paradise Papers, which exposed the secret bank accounts of politicians and world leaders -- tax dodging efforts deployed by people whose salaries are paid with tax dollars collected from others. The accusations involving Binali Yildirim were true, and yet, the court somehow found telling the truth about a high-ranking Turkish government figure was defamatory.

Ünker said what made the “world first” ruling so remarkable was that the complainants acknowledged that her articles were true.

“This decision is not a surprise for us. Because the result was certain from the beginning. There is no criminal offense or defamation in my articles,” she said.

“The fact is Binali Yıldırım’s sons have Maltese companies. Binali Yıldırım had already accepted that they have these companies. In the indictment, it is also accepted.

In Turkey, it's illegal to expose shady dealings and wrongdoing if it involves government officials. The courts serve the Turkish government, rather than act as a check against its overreach. This is all headed up by one of the world's thinnest-skinned autocrats, Recep Tayyip Erdogan, who made made a cottage industry of worldwide censorship.

It's a garbage ruling by a garbage court in a country run by a collective of garbage people who wield an unholy amount of power. Ünker plans to appeal the ruling -- not necessarily because it will change things, but because that's what you do when you're faced with a clearly unfair ruling from a wholly-subservient court.

If anything is going to change the situation in Turkey, it's not going to be some magical reawakening of basic respect for human rights from deep inside the government. It's the rest of the world applying pressure by refusing to pretend President Erdogan has anything worthwhile to contribute to the world. American tech companies need to blow off the country's demands for user info and content removal, and governments of other countries need to stop following up on criminal complaints filed by Turkey against foreign citizens. The status quo is being maintained by world inaction and Turkey's citizens paying the price over and over again.

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]]>there-is-no-defense-against-defamation-in-Turkeyhttps://www.techdirt.com/comment_rss.php?sid=20190115/07001941391Mon, 14 Jan 2019 10:43:24 PSTFederal Court Says Iowa's Ag Gag Law Is UnconstitutionalTim Cushinghttps://www.techdirt.com/articles/20190110/11354041372/federal-court-says-iowas-ag-gag-law-is-unconstitutional.shtml
https://www.techdirt.com/articles/20190110/11354041372/federal-court-says-iowas-ag-gag-law-is-unconstitutional.shtml
As farms have found themselves scrutinized for their practices, there's been a legislative desire to cover questionable actions under the protective garb of opacity. Ag lobbyists have successfully pushed for laws criminalizing the exposure of facts. As a bonus, they've also secured legislation labeling animal rights activists and others concerned about farm animal well-being as "terrorists."

The victories have been short-lived. Anyone not completely consumed by self-interest would recognize the laws violate the First Amendment by preventing fact-gathering or dissemination of observations by those who've bluffed their way onto farms precisely to uncover abusive practices. Courts are overturning these laws, but that's not stopping anyone from writing new ones just as unconstitutionally sound. Fortunately, a recent federal court decision [PDF] adds to the ammo opponents of these laws can use to bring them down. (via Courthouse News Service)

Iowa's "ag gag" law was a direct response to criticism of farm practices -- criticism driven by undercover investigations by journalists and activists posing as farm employees. State legislators had a host of bad reasons for the law -- all of them dancing around the actual reason: to prevent criticism of farm practices.

Lawmakers described the bill as being responsive to two primary concerns of the agricultural industry: facility security (both in terms of biosecurity and security of private property) and harms that accompany investigative reporting. For example, as to security, then-Representative Annette Sweeney provided: “With this bill we want to make sure everybody involved in our livestock facilities and working within in those facilities is forthright, and want to make sure our livestock is being kept safe,” and then-Senate President John “Jack” Kibbie supported an early draft of the bill because “[t]here’s viruses that can put these producers out of business, whether it’s cattle, hogs or poultry.” As to reputational harms, former Senator Tom Rielly commented on a draft version of the bill: “What we’re aiming at is stopping these groups that go out and gin up campaigns that they use to raise money by trying to give the agriculture industry a bad name.”

It's surprising the real reason is named, even if the phrase -- "harms that accompany investigative reporting" -- is polluted by spin. The rest is disingenuous gibberish. Keeping employees "forthright" was never the point. Actual non-activist employees weren't prevented from lying about animal treatment practices. And the easiest way for the ag industry to fight a negative reputation would be to end the practices that give it a "bad name." Since that clearly wasn't going to happen, captured regulators decided to poke holes in the First Amendment. The court is here to close those holes and send legislators and their favorite lobbyists back to the drawing board.

The court says that even if it buys the government's arguments for the enactment of the law, it's stated reasons (which ignore the desired side effect of preventing the public from learning about the industry producing its food) aren't enough to justify this intrusion on First Amendment rights.

However, accepting Defendants’ argument that property and biosecurity are the state’s actual interests protected by § 717A.3A, the Court is persuaded these interests are important; but they are not compelling in the First Amendment sense. Herbert, 263 F. Supp. 3d at 1211-12 (assuming, despite record evidence to the contrary, that the state’s proffered interests— protection from spread of disease; injury to animals and workers caused by unauthorized actions—were the actual reasons for enacting the statute, but finding that the harms targeted were “entirely speculative,” and therefore could not be considered compelling); Otter, 118 F. Supp. 3d at 1207-08 (finding the state’s “interest in protecting personal privacy and private property” to be important, but not compelling; furthermore, “even if the [s]tate’s interest in protecting the privacy and property of agricultural facilities was ‘compelling’ in the First Amendment sense, [the statute] [wa]s not narrowly drawn to serve those interests”).

You'd think a state government so concerned about "protecting" favored industries would have done a little more on the evidence-gathering front. Then again, maybe it did but (surprise!) couldn't find anything to justify its legislative stance. Either way, the end result is the same: the First Amendment isn't subject to legislators' fantasies.

Defendants have produced no evidence that the prohibitions of § 717A.3A are actually necessary to protect perceived harms to property and biosecurity.

[...]

Defendants have made no record as to how biosecurity is threatened by a person making a false statement to get access to, or employment in, an agricultural production facility. Nor, in the absence of any record to the contrary, will the Court assume that biological harm turns on a human vector making a false statement unrelated to such harm in order to gain access to the facility. Protecting biosecurity is therefore purely speculative and cannot constitute a compelling state interest.

Furthermore, the stated interests are already protected by laws against trespassing and possessing pathogens with the intent to harm the health of farm animals or crops. The state argued the trespassing law doesn't seem to be deterring trespassers, but the court counters this by asking why the state thinks using the First Amendment as a doormat will be a more effective deterrent to trespassing.

The court speculates there may be a way to craft a law that deters what the state says it wants to deter, as well as the things the state won't admit it wants to deter, but this ain't it chief.

To the extent that a violation of § 717A.3A can be likened to the common law breach of a duty of loyalty, to criminalize such a breach goes far beyond what is necessary to protect the state’s interests and allows for expansive prosecution.

No matter what your stated reasons are for implementing a law, if the actual target is the act of journalism -- gathering facts and reporting on observations -- you're going to run into Constitutional challenges. And if you're not honest about what you're really targeting, your law won't survive judicial examination.

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]]>because-of-course-it-ishttps://www.techdirt.com/comment_rss.php?sid=20190110/11354041372Mon, 14 Jan 2019 09:33:00 PSTPakistan Demands Google Take Down Petition For Academic Freedom... Saying It Represents Hate SpeechMike Masnickhttps://www.techdirt.com/articles/20190111/16044241379/pakistan-demands-google-take-down-petition-academic-freedom-saying-it-represents-hate-speech.shtml
https://www.techdirt.com/articles/20190111/16044241379/pakistan-demands-google-take-down-petition-academic-freedom-saying-it-represents-hate-speech.shtml
While it's understandable (these days especially) that some are concerned about what they refer to as "hate speech," it's worth reminding people (as we've done for years) that laws against hate speech are almost universally used by governments to punish people they don't like, rather than to protect those who most people normally consider the targets of hate speech.

The request came from the Pakistan Telecom Authority, which cited Section 11 and Section 37 — which lay out restrictions on “hate speech” and “unlawful online content” — of Pakistan’s 2016 Prevention of Electronic Crimes Act

11. Hate speech—Whoever prepares or disseminates information, through any information system or device that advances or is likely to advance interfaith, sectarian or racial hatred shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

[ . . . ]

Unlawful on-line content—l) The Authority shall have the power to remove or block or issue directions for removal or blocking of access to an information through any information system if it considers it necessary in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.

As faculty members and teachers, we are extremely concerned about the events that have taken place over the last few days at universities across Pakistan, which signal a closure of intellectual space within the country. Between April 12th and 13th four separate but related instances of repression took place on university campuses in different parts of the country.

In the first instance, an event entitled ‘Ethnic Rights, New Social Movements, and the State of the Federation in Pakistan,’ which was supposed to be held at Habib University in Karachi on April 13th was forcibly cancelled only an hour before the event was due to be held after a visit from state functionaries. This event was intended as a teach-in and panel discussion in which various new social movements emerging across the country would be analyzed and discussed by experts from the field. Not only was the event abruptly cancelled, one of the guest speakers was forced off campus by the university security despite the fact that it was the university that had invited him in the first place.

In the second instance, an event that was planned to be held at the Lahore University of Management Sciences, also on April 13th, which was a commemoration of the student who was brutally murdered by a mob one year ago at Abdul Wali Khan University, Mashal Khan, was also forcibly cancelled on the same day the event was due to be held. This event was planned in order for students to come together and mourn the loss of a fellow student who dedicated his short life to raising his voice in the struggle for peace and justice.

That doesn't seem to be hate speech, now, does it? So, once again, we have "hate speech" rules being used in an attempt to punish people the government doesn't like.

This, of course, is not a defense of "hate speech," but this pattern is undeniable. The nature of hate speech is such that it is frequently used by the powerful against marginalized groups. And, by definition, marginalized groups are rarely in power in the government, so it frequently does little to actually protect such groups. However, when there is no real definition of "hate speech" and it is quickly turned into "anything we don't like," it enables powerful governments to silence and punish anyone.

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]]>hate-speech-used-for-censorshiphttps://www.techdirt.com/comment_rss.php?sid=20190111/16044241379Fri, 11 Jan 2019 12:42:00 PSTVietnamese Government Whines Facebook Isn't Helping It Censor Critics Quickly EnoughTim Cushinghttps://www.techdirt.com/articles/20190110/15063641374/vietnamese-government-whines-facebook-isnt-helping-it-censor-critics-quickly-enough.shtml
https://www.techdirt.com/articles/20190110/15063641374/vietnamese-government-whines-facebook-isnt-helping-it-censor-critics-quickly-enough.shtml
The censorship arm of the Vietnamese government is at it again, complaining that it's not getting enough censorship accomplished. The target of its complaints is, oddly enough, a former enabler of its dissent-stifling efforts, Facebook.

According to the ABEI [Authority of Broadcasting and Electronic Information], Facebook had violated Vietnamese laws in three major areas of managing information content, online advertising and tax liability.

Facebook had not reportedly responded to a request to remove fanpages provoking activities against the State at the request of authorities.

Facebook had also allowed content from personal accounts to post slanderous content, anti-government sentiment and libel and defamation of individuals, organisations and State agencies. This content had been found to seriously violate Viet Nam’s Law on Cyber Security, Government’s Decree 72/2013, on the management, provision and use of internet services and online information and the MIC’s Circular 38 detailing the provision of public information across the border.

Just like that, criticism of the government becomes an cybersecurity threat, as does libel, defamation, and, um, providing public information across borders. Vietnam censors are angry Facebook hasn't responded to multiple emails demanding the removal of "distorted or misleading" content. However, Facebook has responded, telling the Vietnamese government these posts don't violate "community standards."

Apparently, the Vietnamese government is going to tax Facebook into submission.

According to ANTS market research company, in 2018, spending on online advertising in Viet Nam was estimated at US$550 million, of which advertising spent on Facebook and Google were $235 million and $152.1 million respectively. However, the two have reportedly ignored their tax obligations in Viet Nam.

The fact that foreign businesses such as Facebook do not pay taxes had caused the state to lose money and float the online advertising market, said the ABEI.

If this doesn't work (and it won't), the government is going to do other vague things ("necessary economic and technical measures") to hurt Facebook and "ensure a clean and healthy network environment." One "necessary economic measure" is somehow blocking Facebook from collecting money for "hatred advertising," whatever the hell that is.

What the government really wants is direct control. The Financial Times reports the government is demanding Facebook physically set up shop in Vietnam as the new law requires. Having a local office makes it that much easier for men with guns to follow up on ignored content removal requests. For exactly this reason, Facebook should never create a Vietnam office, unless it's going to do it patent troll-style and rent out an empty office and tell the Vietnamese government all content removal requests must be mailed to the nearest strip mall with a Mailboxes, Etc.

The Vietnamese government doesn't have much leverage as it loves having access to Facebook to deliver its version of events, as well as give its 10,000 full-time internet monitors something to look at. So, it's not going to kick Facebook out. It's just going to keep demanding fees it can't collect while claiming anything anti-government is a threat to the nation's safety.

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]]>get bent fellow UN memberhttps://www.techdirt.com/comment_rss.php?sid=20190110/15063641374Fri, 11 Jan 2019 09:22:32 PSTAppeals Court: First Amendment Violation To Ban Members Of The Public From Gov't Officials' Facebook PagesTim Cushinghttps://www.techdirt.com/articles/20190109/14451841365/appeals-court-first-amendment-violation-to-ban-members-public-govt-officials-facebook-pages.shtml
https://www.techdirt.com/articles/20190109/14451841365/appeals-court-first-amendment-violation-to-ban-members-public-govt-officials-facebook-pages.shtml
Late last spring, a federal court in New York made it clear Trump's blocking of Twitter users violated those users' First Amendment rights. As the court reasoned then, Twitter may be a private company, but the use of it by government official to engage with the public makes it a limited public forum -- limited to Trump's account and Twitter users' interaction with it. Twitter remains free to moderate as it pleases. The ruling did not say Twitter itself was a public forum, just government officials' use of the platform via official accounts.

When Trump's account blocked people he didn't like, he violated the First Amendment.

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that "[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs," ... and defendants do "not contest Plaintiffs' allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies." ... The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

Nearly a year later, another lawsuit involving government officials and their social media accounts has reached the appellate level. And the Fourth Circuit Court of Appeals has come to the same conclusion. The stakes may be smaller -- shrinking from the President and his millions of followers to a Virginia county board member -- but the outcome is the same. From the decision [PDF]:

The Chair's Facebook Page also is "compatib[le] with expressive activity." Cornelius, 473 U.S. at 802. "Congress [has] recognized the internet and interactive computer services as offering 'a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.'" Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (quoting 47 U.S.C. § 230(a)(3)); cf. Bland, 730 F.3d at 386 (finding post to campaign Facebook page "constituted pure speech"). And the Supreme Court recently analogized social media sites, like the Chair's Facebook Page, to "traditional" public forums, characterizing the internet as "the most important place[] (in a spacial sense) for the exchange of views." Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). An "exchange of views" is precisely what Randall sought—and what in fact transpired—when she expressly invited "ANY Loudoun citizen" to visit the page and comment "on ANY issues," and received numerous such posts and comments.

But Chairperson Phyllis Randall didn't like Brian Davison's comments on any issues, especially those related to ethics and school board spending. So she banned Davison from posting comments to her page -- the same page she declared to be her "county Facebook page." The court's description of the page leaves little doubt it was being used as an official tool of communication by Phyllis Randall.

Randall created and administered the Chair's Facebook Page to further her duties as a municipal official. She used the Chair's Facebook Page "as a tool of governance," id. at 713: through the Chair's Facebook Page, Randall provides information to the public about her and the Loudoun Board's official activities and solicits input from the public on policy issues she and the Loudoun Board confront.

If a government official is going to use a social media account in this fashion, they can't ban others from accessing it or posting comments without violating the First Amendment. Randall's arguments about how "public" this "public forum" was -- what with a private company providing the communications platform -- don't budge the needle at all. As the court points out, any interpretation still leads to First Amendment violations.

Upon concluding that interactive component of the Chair's Facebook Page amounts to a public forum, we would normally need to determine whether it constitutes a traditional public forum or designated or limited public forum. In the present case, however, we need not decide that question because Randall's ban of Davison amounted to "viewpoint discrimination,"which is "prohibited in all forums."

This really shouldn't be up for discussion but it will be as long as politicians think they can enjoy the advantages of third-party social media platforms with none of the downside. Talking to the public is always going to result in comments and questions government officials don't want to hear. But that's part of job. Being a public servant means dealing with the public, which can often be far from pleasant. Banning people on platforms is an easy way to silence critics, but it's almost always going to be a violation of their rights.

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]]>seems obvious but let's keep stacking up the caselawhttps://www.techdirt.com/comment_rss.php?sid=20190109/14451841365Fri, 11 Jan 2019 03:18:32 PSTLinkedIn Is Helping The Chinese Government Silence CriticsTim Cushinghttps://www.techdirt.com/articles/20190109/18043041366/linkedin-is-helping-chinese-government-silence-critics.shtml
https://www.techdirt.com/articles/20190109/18043041366/linkedin-is-helping-chinese-government-silence-critics.shtml
The social networks of the world aren't doing much to make the world a better place. Facilitating communications across borders is great -- a definite net gain for the world's citizens. But these platforms insist on distributing globally while thinking locally, making their operations subject to censorial governments in the countries where they do business.

LinkedIn censored the profile and activities of a vocal critic of the Chinese government for users in China, in another apparent response to a censorship request from the government.

Corporate fraud investigator Peter Humphrey, who is British and lives in the UK, was informed by LinkedIn in December that his profile had been censored in China, but after being asked about it by BuzzFeed News this week, LinkedIn restored the page and said it had only been blocked in error.

LinkedIn is one of the only American social media services to be warmly welcomed on the other side of the Great Firewall. Consequently, this means it actually has something to report about China and its demands for content removal in its transparency reports. So far, the censorship plan is working... with an assist from LinkedIn.

LinkedIn is trying to have it both ways. It's complying with China's demands and saying things about having to follow the laws of the country it's doing business in, as it did in a message to Peter Humphrey about his account suspension. (Screenshot at this link.)

While we strongly support freedom of expression, we recognized when we launched that we would need to adhere to the requirements of the Chinese government in order to operate in China.

Then, when the heat comes down, LinkedIn is trying to pretend its proxy censorship was just a mistake.

Asked why Humphrey's profile had been removed in China, Nicole Leverich, a spokesperson for LinkedIn, said an internal review found the profile was “blocked in error.” It has now been restored for users in China, she said.

“Our Trust and Safety team is updating our internal processes to help prevent an error like this from happening again,” she added.

Swell, if that is what's actually going to happen going forward. But China is batting 9-for-9 in takedowns so far, which seems to indicate the review process kicks in only after people start complaining, rather than when LinkedIn receives requests from the Chinese government.

While it makes things easier to abide by local laws when offering services in other countries, companies shouldn't be in any hurry to indulge censorship just because locals laws enable the silencing of criticism and dissent.

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]]>maybe people will start paying attention to their notifications NOWhttps://www.techdirt.com/comment_rss.php?sid=20190109/18043041366Thu, 10 Jan 2019 09:27:00 PSTChinese Police Now Performing Door-To-Door Twitter CensorshipTim Cushinghttps://www.techdirt.com/articles/20190106/09204741342/chinese-police-now-performing-door-to-door-twitter-censorship.shtml
https://www.techdirt.com/articles/20190106/09204741342/chinese-police-now-performing-door-to-door-twitter-censorship.shtml
The Chinese government doesn't have much interest in utilizing social media companies' online portals to target content it doesn't like. And there's plenty of content the government doesn't like. Between the Great Firewall and its obsessive tracking of citizens through pervasive surveillance tech and "Citizen Scores," there's really not much left for American social media companies to do.

The data contained in social media company transparency reports appears to indicate the Chinese government is capable of censoring content without outside assistance. Only Google's shows a significant amount of requests from the Chinese government. Facebook hasn't seen anything in years. And Twitter's report sports a gaudy "N/A" when it comes to content takedown requests from the Chinese government.

The 50-year-old software engineer was tapping away at his computer in November when state security officials filed into his office on mainland China.

They had an unusual - and nonnegotiable - request.

Delete these tweets, they said.

The agents handed over a printout of 60 posts the engineer had fired off to his 48,000 followers. The topics ranged from U.S.-China trade relations to the plight of underground Christians in his coastal province in southeast China.

When the engineer didn't comply after 24 hours, he discovered that someone had hacked into his Twitter account - @hesuoge - and deleted its entire history of 11,000 tweets.

Facebook and Twitter are banned in China, but that isn't stopping Chinese citizens from using these services. The crackdown on Twitter, however, does far more to silence dissent than targeting other American social media services. Twitter has been a key outlet in many authoritarian countries where internet censorship is the norm, and even though only a very small percentage of Chinese internet users utilize Twitter, it seems to pose more of a threat to the Chinese government than other platforms with hundreds of millions of users.

The best way to make a point about not angering your government is to make it in person. The article says more than 40 in-person visits involving demands for tweet deletion have been reported, which is likely only a very small percentage of the number that have actually taken place. And, as this report shows, compliance is appreciated but not necessary.

He Jiangbing, a financial commentator, said police came to his Beijing living room to warn about his tweets.

Days earlier, officials visited the Guangzhou home of Ye Du, a well-known writer and supporter of the late Nobel Peace Prize laureate Liu Xiaobo, to hand him a printout of 802 tweets he needed to delete, Ye said in an interview.

Meanwhile, all 30,000 tweets from the account of Wu Gan, an activist serving an eight-year prison sentence, were deleted in November, which suggested a government hack, said Yaxue Cao, a Washington-based activist.

And, lest we pretend this sort of behavior is confined to nations with long histories of oppressing their own people, UK police have recently ramped up their in-person visits to request removal of offending tweets. The high road shouldn't be ceded so quickly by countries claiming to be at the forefront of personal liberty, not when the low road is clogged with so many nations already.

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]]>have you heard the good news about shutting the fuck up?https://www.techdirt.com/comment_rss.php?sid=20190106/09204741342Tue, 8 Jan 2019 10:50:29 PSTProducers Of Movie About Falling In Love With Nazis Using DMCA To Silence CriticismMike Masnickhttps://www.techdirt.com/articles/20190108/10170141356/producers-movie-about-falling-love-with-nazis-using-dmca-to-silence-criticism.shtml
https://www.techdirt.com/articles/20190108/10170141356/producers-movie-about-falling-love-with-nazis-using-dmca-to-silence-criticism.shtml
Apparently the producers of the movie "Where Hands Touch," which is being widely panned as terrible (NY Times calls it a "gut-wrenching misfire" and notes "by the end of the movie, my jaw felt unhinged from dropping so often."), aren't responding well to the criticism. While some of the criticism is about the "plodding" storyline, much of it is about the main plot, which is about a black woman in Nazi Germany -- who appears to support the Nazi cause -- falling in love with a Hitler Youth.

The film got little attention in its theatrical release, but became available online recently, and apparently the producers decided that people tweeting negative things about it deserve to be hit with DMCA takedowns. It seems to have started with Haaniyah Angus who live tweeted watching the film. Reading the entire thread is a treat (seriously, go read it), here are just a couple of clips from her live tweeting:

Oh God, there are so many scenes that made me physically cringe. But I think the worst is when her little white brother (whose existence is never explained) says that her father was black “head to toe.” I don’t know why, but that piece of dialogue just made me want to curl up in a ball and scream. Other than that, I think the scene where a Hitler Youth rally takes place in front of Leyna’s apartment and for some reason her first logical thought is, Oh, I’ll go hang with the li’l Nazis. As most would guess, they aren’t happy to see a black girl, and then proceed to call her a nigga. It’s just so much at once ...

At one point in her thread, Angus uses a very short clip from the film to show how the film uses the awful romcom "rush to the airport, and see each other through a crowd of moving people" trope... except in a Nazi labor camp. You can guess what happened next: the producer of the film, Charles Hanson, filed a DMCA takedown notice:

The producer is apparently the person who manually filed this claim since Twitter didn’t. This is just making me yell since If this is damage control there’s nothing you can fix. pic.twitter.com/ANCVnibO2l

Charlie Lyne saw this and wrote a good thread pointing out, why this use of the DMCA to censor negative criticism was clearly bullshit.

It sucks that the producers of Where Hands Touch would resort to DMCA takedown notices to suppress negative tweets about their film. These underhand tactics—which combat Fair Use critiques with heavy-handed anti-piracy legislation—stifle criticism and coddle cinema.

Lyne explains in detail what happened -- even using the same short clip -- to criticize the filmmakers for censoring criticism. You'll surely guess what happens next. Yup! They send a DMCA notice about his thread too:

Yesterday I wrote a Twitter thread about the use of DMCA takedown notices to stifle criticism. Wouldn't you know it, by the end of the day my thread had received one of its own. I'll be contacting a lawyer on Monday before filing a counter notice. https://t.co/AsF2dTNNgU

As Lyne points out, this is not really about the use of a very short clip (with commentary, which is clearly fair use), since the filmmakers seem to be leaving up tweets that show clips that are positive about the film:

And if anyone still thinks this is really about copyright infringement, here’s a tweet sent two days before @hanxine’s thread, which also includes a clip from Where Hands Touch. This one takes a more positive stance, to say the least. It’s still up. https://t.co/GcKkkwwiOM

She says the "video" was "literally just me and my friend laughing over the ridiculousness of one of the scenes" using her smartphone.

The producer of the film, who appears to be manually sending these DMCA notices himself, responded to Gizmodo with a bunch of utter bullshit about how he's only doing this to protect the copyright:

Charlie Hanson, the producer of the film, told Gizmodo in an email that they “do not have the power to stifle criticism of the film. Everyone has been free to comment positively and negatively whether they have seen the film or not.” He argued that the film is only released in the U.S. at the moment, and that Where Hands Touch Ltd. “has only issued DMCA notices regarding breaches of copyright in cases where unauthorised clips of the film have been copied and posted online.”

This is wrong for a variety of reasons. The fact that he admits the film is only available in the US highlights how these short clips -- all used with comment and/or criticism of the film are obviously fair use. The clip that Angus and Lyne both posted was literally 14 seconds out of a movie. That's not impacting the market. The criticism of his shit film might be impacting the market, but the clips are not. It appears that Hanson's Twitter account is the aptly named @CharlieTantrum, which seems to accurately reflect his childish tantrum to criticism of his film. His Twitter feed is ignoring this entire controversy, but is merely reposting gushing tweets about the film instead.

Every so often some "copyright scholar" or "think tanker" will insist that copyright can't be used for censorship and insist that it's actually the engine for free speech. Those people are lying to you. And this is yet another example. Copyright is regularly used for censorship, though in this case, all its really served to do is make it much more widely known why no one should ever bother watching this awful movie.

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]]>dmca-for-censorshiphttps://www.techdirt.com/comment_rss.php?sid=20190108/10170141356Tue, 8 Jan 2019 09:53:52 PSTFederal Court Says Oregon's Unconstitutional Licensing Law Can't Keep Local Engineer From Calling Himself An EngineerTim Cushinghttps://www.techdirt.com/articles/20190105/14532841340/federal-court-says-oregons-unconstitutional-licensing-law-cant-keep-local-engineer-calling-himself-engineer.shtml
https://www.techdirt.com/articles/20190105/14532841340/federal-court-says-oregons-unconstitutional-licensing-law-cant-keep-local-engineer-calling-himself-engineer.shtml
Oregon resident Matt Jarlstrom didn't agree with the state's traffic safety assessment, spurred on by his wife receiving a ticket from a red light camera. Using his background in engineering and his real-world experience with automatic cameras, he did some math and tried to present it to government officials. The government didn't respond well. It fined Jarlstrom $500 for practicing engineering without a license. In the state of Oregon, certification is needed to call yourself an engineer, even if you're not actually performing any engineering work. At least, that's the way the state read the law when it chose to punish Jarlstrom for questioning its timing of yellow lights.

Naturally, this stupid decision resulted in a lawsuit. Pointing out the unconstitutionality of using a licensing law to suppress protected speech, Jarlstrom sued the state in April 2017. A couple of months later, the state licensing board graciously agreed to temporarily stop violating Jarlstrom's First Amendment rights.

Six months later, the state board finally conceded defeat. It agreed it had misused the statute to punish Jarlstrom for engaging in protected speech and said he could call himself an "engineer" even without the state's prize piece of paper as it was clear he wasn't soliciting engineering work when offering up his critique of traffic light timing patterns.

Thanks to a federal court, the licensing board's admission of wrongdoing has been transformed into First Amendment precedent. As it points out in its opinion [PDF], it's nice the state licensing board has offered an apology, but that's no guarantee it won't enforce the law this way in the future and harm the free speech rights of Jarlstrom or someone else found equally irritating by state officials.

Although the Board has disavowed future enforcement and enacted new regulations, these commitments do not diminish the credibility of Plaintiff’s concerns in light of the plain meaning of the text and context of Or. Rev. Stat. § 672.007(1)(a)-(b), and especially in light of the Board’s history of overzealous enforcement actions.

The court notes the licensing statute clearly regulates speech. But it does so without narrow crafting or addressing a government concern in the least intrusive way possible. The term it addresses -- "engineer" -- is far from specific, which turns the law into a vehicle for Constitutional violations, even some that may be unintentional.

Here, calling oneself an “engineer” is “not an unverifiable opinion of the ultimate quality of a[n] [engineer’s] work or a promise of success, but is simply a fact[.]” Id. Further, a term cannot become inherently misleading simply because a state deems it so.

[...]

The Board argues that courts have upheld similar restrictions on professional titles in other fields. (Def.’s Mot. Summ. J. at 27.) The word “engineer,” however, is different than the other title restrictions courts have upheld in the past.10 Unlike “M.D.” or “certified public accountant,” there is no fixed meaning to the title “engineer.” On the contrary, there are many different types of engineers. Courts have long recognized that the term “engineer” has a generic meaning separate from “professional engineer,” and that the term has enjoyed “widespread usage in job titles in our society to describe positions which require no professional training.” [...] Indeed, many job descriptions contain the word “engineer” even though they do not require any professional engineering expertise or licensure.

To sum up:

The regulation of the title “engineer” is more burdensome than necessary to protect the public from the unlicensed practice of engineering.

The final call by the court? The law is unconstitutional. The state has earned itself a permanent injunction from enforcing it against Jarlstrom. This also means it can't enforce it this way against others it might want to fine into silence, since any other victims of state-level judgment calls like this one have both a federal court decision and the state's admission of wrongdoing to cite in their litigation.

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]]>state-spent-a-year-fighting-over-$500https://www.techdirt.com/comment_rss.php?sid=20190105/14532841340Mon, 7 Jan 2019 12:05:44 PSTNew York Times Moves To Dismiss Joe Arpaio's Defamation Lawsuit By Pointing Out It's Impossible To Defame HimTim Cushinghttps://www.techdirt.com/articles/20190105/16125441341/new-york-times-moves-to-dismiss-joe-arpaios-defamation-lawsuit-pointing-out-impossible-to-defame-him.shtml
https://www.techdirt.com/articles/20190105/16125441341/new-york-times-moves-to-dismiss-joe-arpaios-defamation-lawsuit-pointing-out-impossible-to-defame-him.shtml
Last month, ex-sheriff Joe Arpaio sued three publications, claiming their unflattering articles had done $300 million in damage to his reputation. There's money in politicking, Arpaio figured, stating these publications had made it all but impossible for him and his sterling reputation to secure a Senate seat and move on towards securing his rightfully-owed $300 million.

The New York Times has filed its motion to dismiss [PDF] and it is an entertaining read. It points out the statements it made were substantially true, and if Arpaio doesn't like his villainous misdeeds characterized as villainous, perhaps he should have spent more of his law enforcement career not acting like a villain. (h/t Zoe Tillman)

While Arpaio asserts that the column harmed his “distinguished 55-year law enforcement and political career” and “severely damaged” his reputation with “the Republican establishment” and with “law enforcement,” Compl. ¶¶ 18-19, such an assertion is implausible on its face. The column broke no new factual ground about Arpaio or, as many Arizona officials have described it, his long “reign of terror” as a senior law enforcement official. The column merely summarized the extensive public record regarding Arpaio’s tenure as Sheriff and offered opinions about his political career. In short, the statements in the column about Arpaio are not only true, but the column also constitutes core political speech protected by the First Amendment.

Here's what the New York Times said about the former sheriff in an article suggesting it's a good thing Arizona voters found other candidates they preferred in the recent Senate elections.

His 24-year reign of terror was medieval in its brutality. In addition to conducting racial profiling on a mass scale and terrorizing immigrant neighborhoods with gratuitous raids and traffic stops and detentions, he oversaw a jail where mistreatment of inmates was the stuff of legend. Abuses ranged from the humiliating to the lethal. He brought back chain gangs. He forced prisoners to wear pink underwear. He set up an outdoor “tent city,” which he once referred to as a “concentration camp,” to hold the overflow of prisoners. Inmates were beaten, fed rancid food, denied medical care (this included pregnant women) and, in at least one case, left battered on the floor to die.

Indeed, many prisoners died in Mr. Arpaio’s jail—at an alarming clip. The number of inmates who hanged themselves in his facilities was far higher than in jails elsewhere in the country. More disturbing still, nearly half of all inmate deaths on his watch were never explained. Over the years, the county paid out tens of millions in wrongful death and injury settlements.

At the same time, Mr. Arpaio’s department could not be bothered to uphold the laws in which it had little interest. From 2005 through 2007, the sheriff and his deputies failed to properly investigate, or in some cases to investigate at all, more than 400 sex-crime cases, including those involving the rape of young children.

This is the reputation being damaged to the tune of $150 million (the NYT share) by the Time's recounting of his brutal treatment of prisoners and his lack of zeal when it came to serving and protecting those harmed by the criminals he couldn't be bothered to catch.

Arpaio's career as a (lol) public servant have made him defamation-proof, the New York Times argues, citing plenty of other authorities (including governmental authorities) who have found Arpaio's tactics abusive and repugnant.

While Arpaio has billed his approach to law enforcement as “tough,” numerous critics have alleged that he implemented nothing short of a “reign of terror” through his official position in the Maricopa County Sheriff’s Office (“MCSO”), under which individual rights were trampled and mistreatment of inmates was rife. Arpaio’s tactics have been the subject of federal enforcement actions and literally thousands of civil lawsuits. Maricopa County has paid tens if not hundreds of millions of dollars in judgments, settlements, and costs arising out of MCSO abuses during Arpaio’s tenure—including an estimated $120 million for racial profiling cases alone.

Then it offers a litany of stunning quotes -- some of which emanate from the sentient trash heap currently suing over an allegedly-bruised reputation.

The Sheriff admitted knowing about, and in fact intentionally designing, some conditions at Tent City that created a substantial risk of inmate violence: i.e., the lack of individual security and inmate control inherent in a tent facility; the small number of guards; a mixed inmate population subject to overcrowding, extreme heat, and lack of amenities. . . .

[...]

“Sheriff [Arpaio] acknowledged that he had said that he may spend more to feed his dogs than it costs to feed inmates.”

[...]

“Arpaio has boasted in the past of the food being rotten; green bologna is a specialty.”

[...]

Courts held that Arpaio repeatedly attempted to prevent pregnant detainees from obtaining abortion medical services. Indeed, Arpaio denied elective abortion procedures to pregnant detainees until enjoined from doing so by the federal courts…

[...]

Surveillance video shown at trial revealed that, in custody, MCSO officers handcuffed him, placed a hood over his head, strapped him into a restraining chair, and forced his head between his legs, leading to asphyxiation and death…

[...]

He bragged that “I take the credit” for implementing the chain gang and “it will be here as long as I’m the sheriff.”

[...]

The MCSO reportedly confirmed that from 2005 to 2007 its special victims unit failed to investigate 432 alleged sex crimes and that detectives improperly closed more than 200 of those investigations as solved, when they were not.

[...]

The court also found that MCSO engaged in “special operations” against Latino areas without any concrete allegation of criminal activity and that MCSO officers circulated emails with racist jokes about Mexicans.

[...]

After 21 days of evidentiary hearings, the District Court found that Arpaio “intentionally failed to implement the Court’s preliminary injunction in this case, failed to disclose thousands of relevant items of requested discovery . . . deliberately violated court orders” and that Arpaio “made multiple intentional misstatements of fact while under oath.”

Monster Commits Monstrous Deeds For Two Decades; Is Shocked People Believe He's A Monster

What could possibly be worse than the truth? Even if the NYT had gotten a fact or two wrong (Arpaio alleges other defendants' statements he was convicted of a felony, rather than misdemeanor, is defamation per se), the body of Arpaio's "work" has made him pretty much impervious to reputational damage. You can't get much lower -- not after you made a career out of sewer-dwelling.

This is how you write a motion to dismiss. If a terrible person wants to claim they've suffered reputational damage, you can very publicly remind them of their unapologetic embrace of dehumanizing not only prisoners, but everyone Arpaio felt was too Hispanic to be in this country legally. When you've burdened constituents with millions of dollars in lawsuit settlements and legal expenses, you can't pretend your tattered sheriff's hat is a halo when you get out of the law enforcement business.

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]]>shitheel informed of issue with his chosen footwearhttps://www.techdirt.com/comment_rss.php?sid=20190105/16125441341Wed, 2 Jan 2019 10:44:00 PSTSaudi Arabia Discovers The Streisand Effect; Gets Netflix To Take Down Hasan Minhaj's Show About MBS's AtrocitiesMike Masnickhttps://www.techdirt.com/articles/20190102/09280641317/saudi-arabia-discovers-streisand-effect-gets-netflix-to-take-down-hasan-minhajs-show-about-mbss-atrocities.shtml
https://www.techdirt.com/articles/20190102/09280641317/saudi-arabia-discovers-streisand-effect-gets-netflix-to-take-down-hasan-minhajs-show-about-mbss-atrocities.shtml
Back in October, comedian Hasan Minhaj's show Patriot Act on Netflix did a pretty thorough critique of Saudi Arabia and its leader Mohammad bin Salman, often referred to as MBS. Go watch it here:

It covers a lot of ground, from the death of Jamal Khashoggi to MBS's arresting of a bunch of his cousins to the catastrophic situation in Yemen... and the complicity of the US government and much of Silicon Valley who has taken Saudi money.

Not surprisingly, the Saudi government was not thrilled with this episode, or the fact that it was available via Netflix in the country. So, as first reported by the Financial Times (behind a paywall), and since reported in tons of other places, Netflix has agreed to pull that episode in Saudi Arabia in response to a "legal request."

Apparently, the "legal request" referenced a cybercrime law that says "production, preparation, transmission, or storage of material impinging on public order, religious values, public morals, and privacy, through the information network or computers" is a crime that can lead to imprisonment and fines. Cyber lese majeste, basically.

Not surprisingly, the move by Netflix is leading to tons of criticism directed at both Netflix and Saudi Arabia (but mostly at Netflix for caving).

Of course, this has also generated a lot more interest in that particular episode -- which, again, Netflix has left up on YouTube (and which, it appears, is still available via YouTube in Saudi Arabia). It is the Streisand Effect in action -- and, one might argue that Netflix knew that this was the likely outcome. As such, it not only gets to "avoid" whatever criminal punishment was being threatened by Saudi Arabia, but also gets more attention to this particular pointed criticism of MBS... and, as a side benefit, gets a lot more attention for its Patriot Act show.

Last week Barberton Municipal Judge David Fish sentenced Erin Croghan to three days in jail, a month of house arrest, and a year without social media for "inducing panic" by using Facebook to repeat an unfounded rumor about a pellet gun found at a local school. It could have been worse. Inducing panic is a first-degree misdemeanor in Ohio, meaning it is punishable by a maximum fine of $1,000 and up to six months in jail.

As Sullum points out, this sentencing appears to ignore the First Amendment, which allows for the spreading of stupidity, even if the stupidity could conceivably provoke reactions from those who come across it.

The school claims the repeating of the unfounded rumor -- months after the alleged event had happened -- disrupted school administration. Apparently, the principal of Coventry Middle School "spent the entire day" answering phone calls from parents who had read Croghan's post. Croghan's post -- referencing a rumor she had heard from her daughter the previous November -- hit Facebook shortly after the mass shooting in Parkland, Florida.

The impact of her post certainly was felt by the school, but did it really meet the "serious public inconvenience or alarm" standard needed to convict Croghan? That seems unlikely. As her defense pointed out, the school didn't alert parents, go into lockdown mode, or do anything else that would signal it believed the unfounded rumor to be true.

Barberton Municipal Judge David Fish also put Erin Croghan on probation for one year and ordered that she refrain from using social media during that time.

“I wish I understood why you conflated this story about a pellet gun in a locker that school officials say never happened,” Fish said. “That may remain an eternal mystery.”

Therein lies the other problem with the sentence: prior restraint. Just because the incident Croghan was sentenced for occurred on Facebook doesn't justify the revocation of this privilege for an entire year. This is in addition to a sentence of 180 days in jail (with 147 suspended and 30 days of house arrest) -- all over the spread of info Croghan may have sincerely believed to be true.

The school claims Croghan knew the rumor was false, offering up perhaps the most unbelievable justification for this claim:

Coventry schools officials say what Croghan posted wasn’t true and that she knew it because they told her.

Right. No one has ever lied about anything. Except Croghan. Apparently.

The end result is a ruling that will be used to punish more people for spreading rumors on social media. Ohio needs to start pouring money into their jail system if this is the way these cases are going to be handled, as Croghan's lawyer points out:

"If we're going to charge every person who puts misinformation on Facebook," [Jeff ]Laybourne told the jury, "this place will be inundated."

The sentence is being appealed. This will likely be followed by a lawsuit, especially if the sentence is overturned. The application of the state law in this fashion criminalizes ignorance. And, in this case, it comes with additional Constitutional violations (prior restraint) that make it litigation bait. Handing out jail time in response to "fake news" is the worst way to handle careless -- but protected -- speech. Sooner or later, Ohio taxpayers are going to be paying real dollars to settle cases stemming from "fake news" arrests.

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]]>never-mind-the-Constitutionhttps://www.techdirt.com/comment_rss.php?sid=20181227/11474341300Thu, 27 Dec 2018 03:48:08 PSTUK Cops Have Decided Impolite Online Speech Is Worth A Visit From An OfficerTim Cushinghttps://www.techdirt.com/articles/20181221/14463341281/uk-cops-have-decided-impolite-online-speech-is-worth-visit-officer.shtml
https://www.techdirt.com/articles/20181221/14463341281/uk-cops-have-decided-impolite-online-speech-is-worth-visit-officer.shtmlIf you're not a resident of the UK, thank the First Amendment for not turning Twitter fights into police action. The UK's anti-hate speech laws have been extended to cover merely impolite speech -- at least according to UK law enforcement agencies who say ridiculous things like this. [h/t Amy Alkon]

In September, the official South Yorkshire Police account tweeted, “In addition to reporting hate crime, please report non-crime hate incidents, which can include things like offensive or insulting comments, online, in person or in writing. Hate will not be tolerated in South Yorkshire. Report it and put a stop to it.”

So, that's where things are at in the UK. That has led to cops showing up at people's doors to discuss online incivility. It's a heckler's veto with the weight of the UK government behind it -- something that can be abused to silence critics of people who can't handle criticism.

Harrop was the reason Linehan was talking to police officers about tweets that didn't even violate the Twitter Rules. He had merely suggested Harrop's steamrolling of the billboard buyer during a televised debate might have been "male privilege." Another tweet alleged Harrop had threatened women and doxxed them for not being friendly enough to his cause. This is the tweet Harrop admits bothered him so much he needed to call the police. This is the disturbing, but ultimately useless, outcome of Harrop's decision.

After explaining to Linehan why he was there, the police officer—whom Linehan says was polite and friendly—asked Linehan if he would stop engaging with Harrop. Linehan told him he had no intention of stopping, the officer left, and Linehan immediately tweeted about what had just happened. The whole episode, he says, took about 15 minutes, and the police never told him which tweet Harrop found so offensive.

The country's laws say police can do this. So, naturally, they are doing this, even though it appears to be a massive waste of resources. This one ended rather quickly, with no violence or threats emanating from those sent to restore the internet's civility. But not every interaction will end this way. Some may end in criminal charges. Some may end with deployments of force. The UK government might think complaints like these will be handled civilly by public servants with the power to deploy deadly force, but that's a big assumption when the underlying "crime" is incivility. Confusion and/or hostility from people being accosted by law enforcement for being a bit too extreme online is probably a normal reaction. Police officers tend not to handle either of these emotions very well.

And there's this, which is the Norwich PD's official response to talking to a bathrobe-clad Linehan on a Sunday morning about tweets that wouldn't even ruffle Twitter's TOS feathers:

“Whilst we recognise that there is Freedom of Speech in the UK, it is important that the use of Social Media respects diversity and takes into consideration the feelings of others.”

You can't recognize free speech while still insisting everyone has to be nice to everyone else while online. You can hope that's what will happen, but you can't demand this of the general population. Unless you're in the UK, in which case you can, because you don't really recognize free speech and should probably remove that phrase from the government's collective vocabulary.

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]]>waste-of-time,-money,-and-oxygenhttps://www.techdirt.com/comment_rss.php?sid=20181221/14463341281Wed, 26 Dec 2018 14:26:18 PSTNew Hampshire Sued Over Criminal Defamation Law Abused To Arrest Law Enforcement CriticTim Cushinghttps://www.techdirt.com/articles/20181223/12182241285/new-hampshire-sued-over-criminal-defamation-law-abused-to-arrest-law-enforcement-critic.shtml
https://www.techdirt.com/articles/20181223/12182241285/new-hampshire-sued-over-criminal-defamation-law-abused-to-arrest-law-enforcement-critic.shtmlCriminal defamation laws are stupid. But they're more than stupid: they're harmful. Plenty of entire countries still have them. But those countries don't have a First Amendment. With the First Amendment in place, it makes little sense to criminalize speech that can be handled through civil litigation. Nevertheless, these outdated laws are still on the books. In some cases, courts have already found them unconstitutional, but legislators seem unwilling to remove laws that are only ever abused by the government.

Due to this combination of laziness and self-interest, half the countrystill allows the government to arrest people for engaging in alleged defamation. One of those 25 states is New Hampshire, where the ACLU is now working to have the law ruled unconstitutional.

The case stems from the arrest of New Hampshire resident Robert Frese. Frese was hauled in by Exeter cops for calling the Exeter police chief "corrupt" and saying that he had "covered up" for dirty Exeter cops. The arrest of Frese for criticizing Exeter law enforcement did nothing to undermine either of his claims. If anything, it just made Exeter cops look dirtier and Police Chief William Shupe look more corrupt.

The criminal defamation charges ended up being dropped by the prosecutor, who found the charge wasn't worth pursuing. That ended this criminal prosecution under the stupid state law, but it didn't get rid the stupid state law that allowed Police Chief Shupe to retaliate against Frese in the first place.

That's where the ACLU comes in. Suing on behalf of Frese (and New Hampshire residents in general), the ACLU points out in its lawsuit [PDF] that criminal defamation laws are mainly used by government officials to shut down criticism or otherwise punish members of the public.

Nationally, criminal defamation charges are disproportionately filed against people who criticize public officials or government employees, especially law enforcement officers. One study identified 23 criminal defamation prosecutions or threatened prosecutions for the period from 1990-2002, 12 of which were deemed “political,” and 20 of which involved public figures or issues of public controversy. George C. Lisby, No Place in the Law: The Ignominy of Criminal Libel in American Jurisprudence, 9 Comm. L. & Pol’y 433, 467 (2004) (citing Russell Hickey, A Compendium of U.S. Criminal Libel Prosecutions: 1990-2002, Libel Defense Resource Center Bull., Mar. 27, 2002, at 97)). Another study, focusing on Wisconsin, found that 39 percent of criminal defamation prosecutions involved either public officeholders or government employees, including numerous charges of sexual misconduct by law enforcement and probation officers. David Pritchard, Rethinking Criminal Libel: An Empirical Study, 14 Comm. L. & Pol’y 303, 327– 33 (2009).

The editor and publisher of a small newspaper in Kansas were convicted of criminal defamation after the paper published an article suggesting that the mayor lived in another county and was therefore ineligible for public office. A Massachusetts woman was convicted of criminal defamation in New Hampshire after she claimed that a coffee shop’s employees spit in police officers’ coffee. And a Kansas man was charged with criminal defamation after he posted a yard sign criticizing his local government’s inaction on a water drainage problem…

Keeping an obviously-unconstitutional law on the books gives government more hammers to deploy against pesky nails who won't keep their heads down. Citizens -- who rarely have the power to remove laws from the books -- continue to be the victims of bad lawmaking and the bad lawmakers who benefit from them.

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]]>if-I-had-a-hammer,-I'd-swing-at-the-publichttps://www.techdirt.com/comment_rss.php?sid=20181223/12182241285Wed, 26 Dec 2018 09:02:00 PSTDangerous Court Ruling Says Colleges May Be Required To Block Access To Certain WebsitesMike Masnickhttps://www.techdirt.com/articles/20181220/17585841276/dangerous-court-ruling-says-colleges-may-be-required-to-block-access-to-certain-websites.shtml
https://www.techdirt.com/articles/20181220/17585841276/dangerous-court-ruling-says-colleges-may-be-required-to-block-access-to-certain-websites.shtml
Over the past few years, there have been a number of debates and legal fights concerning questions around Title IX and due process. Title IX of the Education Amendments Act of 1972 is supposed to protect people in educational settings from sex discrimination. It has been interpreted in some questionable ways, lately, with regards to the due process of anyone accused. But, now it's also impacting some other areas as well. The folks at FIRE highlight a fairly horrific appeals court ruling in the 4th Circuit, overturning a lower court ruling (that had dismissed the case), saying that a university might be required to ban access to certain websites under Title IX.

The case was filed against the University of Mary Washington, claiming Title IX violations from some students/student groups. While the court leaves some of the claims dismissed, it reinstates a specific Title IX claim that is quite worrying. As FIRE's Samantha Harris explains first the background of the case:

The case, Feminist Majority Foundation v. University of Mary Washington, stems from a series of events that roiled UMW’s campus back in 2015. At the time, members of the UMW student group Feminists United on Campus (a local affiliate of Feminist Majority Foundation) were speaking out about several issues on campus, including the student senate’s decision to authorize fraternities as well as a bawdy rugby chant that several members of UMW’s men’s rugby team were recorded singing at an off-campus party. Following their advocacy, FUC members found themselves the targets of online hostility, particularly on a now-defunct platform called Yik Yak that allowed users within a certain geographic radius to post anonymous messages. FUC complained about this repeatedly to the UMW administration, and after they found UMW’s response to their complaints to be lacking, they first filed a complaint with the U.S. Department of Education’s Office for Civil Rights and then, ultimately, a federal lawsuit.

The lawsuit claims that UMW discriminated against the plaintiffs, in violation of Title IX, by responding with deliberate indifference to their claims of peer harassment, and by allowing UMW students to retaliate against the plaintiffs for filing an OCR complaint. The suit also alleges that former UMW president Richard Hurley retaliated against the plaintiffs by publicly defending the university against their allegations of discrimination.

The lower court dismissed the case, but here the 4th Circuit brings back a large component of it in a very troubling manner. Basically, by saying that since the University provided internet access to sites where harassing content could be found (on the third party app Yik Yak), the University was potentially liable:

The Complaint alleges that much of the harassment occurred through Yik Yak. Although that harassment was communicated through cyberspace, the Complaint shows that UMW had substantial control over the context of the harassment because it actually transpired on campus. Specifically, due to Yik Yak’s location-based feature, the harassing and threatening messages originated on or within the immediate vicinity of the UMW campus. In addition, some of the offending Yaks were posted using the University’s wireless network, and the harassers necessarily created those Yaks on campus. Moreover, the harassment concerned events occurring on campus and specifically targeted UMW students....

Furthermore, to the extent the sexual harassment was communicated through UMW’s wireless network, the Complaint alleges that the University could have disabled access to Yik Yak campuswide. The Complaint also alleges that the University could have sought to identify those students using UMW’s network to harass and threaten Feminists United members. If the University had pinpointed the harassers, it could then have circumscribed their use of UMW’s network. Indeed, it is widely known that a university can control activities that occur on its own network. A university may, for example, bar a student caught downloading music or movies in violation of copyright laws from accessing its network.

Ah, there's that copyright creep situation again. It's annoying when the average clueless joe says something along the lines of "well, if you can kick people offline for copyright, why not x..." but having a Federal Appeals Court Judge say it is really frustrating.

But think about what the court is saying here. Because this happened via the university's network (even on an app totally unrelated and out of the control of the university), the university can still be blamed for not blocking it. That's... crazy. That means that a university would need to proactively police the entire internet to stop anyone from saying anything harassing -- and if they come across anything or are told of anything, they'd be required to block access to that site or app entirely for all students. How is that reasonable?

The court also rejects the fact that the university had no way of figuring out who posted the "offending Yaks." Yik Yak (which went out of business last year) was always entirely anonymous. But the court doesn't seem to care:

To the extent the University contends it was unable to control the harassers because the offending Yaks were anonymous, we readily reject that proposition. The Complaint alleges that the University never sought to identify the students who posted the offending messages on Yik Yak, even though some of those messages were facilitated by (i.e., posted through the use of) UMW’s network. Nor did the University ever ask Yik Yak to identify those users who had harassed and threatened UMW students. The University cannot escape liability based on facially anonymous posts when, according to the Complaint, UMW never sought to discern whether it could identify the harassers.

The dissenting opinion in the ruling clearly sees the problematic impact of all of this:

Make no mistake, the majority’s novel and unsupported decision will have a profound effect, particularly on institutions of higher education, until the Supreme Court reaffirms that Davis means what it says. Institutions, like the University, will be compelled to venture into an ethereal world of non-university forums at great cost and significant liability, in order to avoid the Catch-22 Title IX liability the majority now proclaims. The University should not hesitate to seek further review.

The case is far from over (and FIRE also notes that there's a separate issue of whether or not the content was even harassing in the first place, that hasn't even been considered yet). But the implications here are huge and really damaging.

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]]>free-speech?https://www.techdirt.com/comment_rss.php?sid=20181220/17585841276Tue, 18 Dec 2018 10:42:39 PSTPolitician Who Tried To Hijack Critic's Blog Via Trademark Applications Agrees To Never Pull This Bullshit AgainTim Cushinghttps://www.techdirt.com/articles/20181217/14375941252/politician-who-tried-to-hijack-critics-blog-via-trademark-applications-agrees-to-never-pull-this-bullshit-again.shtml
https://www.techdirt.com/articles/20181217/14375941252/politician-who-tried-to-hijack-critics-blog-via-trademark-applications-agrees-to-never-pull-this-bullshit-again.shtmlIn one of the more blatant attempts at censorship we've witnessed, a Minnesota politician tried to trademark the name of a politically-focused blog that often criticized her. Tax board member Carol Becker tried to take the name "Wedge LIVE!" away from its owner, John Edwards, who had been using the name for years to cover local politics. Becker first claimed she thought of the name herself, which she thought would be perfect for her yet-unrealized podcast covering… local politics.

After receiving a bit of heat from Tony Webster, John Edwards, and Edward's supporters, Becker finally admitted she was attempting to take the name away from her critic, who had built his unregistered brand over the past several years. After more backlash, she decided to withdraw her trademark applications but warned she would try again in six months if Edwards didn't register them first.

Four months later, it appears Edwards has prevailed. His post at Wedge LIVE! notes he has dropped his lawsuit against Becker seeking an injunction blocking her from filing for Wedge Live-related trademarks. Becker has agreed to drop her censorial pursuit of the name "Wedge LIVE," bringing an end to this ridiculous and particularly inept attempt to silence a critic.

The legal effort to defend Wedge LIVE from Carol Becker has ended in victory. In a settlement reached late Monday, and fully executed yesterday, Becker has acknowledged my ownership of the name “Wedge LIVE.” Additionally, Becker has agreed that she will “never assert any claim to these marks in the future.”

Perhaps this debacle will lead Becker to exit the public sector. Becker attempted to use the federal government's IP protections to undermine a critic -- one she also baselessly accused of being funded by "dark money" and called a tax fraud. She also denied being aware of Wedge LIVE!'s existence when first confronted by journalists, only belatedly admitting she knew exactly what she was doing when she filed the disingenuous trademark applications. She's proven she can't really be trusted to handle even the small part of government she's staked out.

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]]>shove-the-shame-you-don't-have-into-a-ziploc-bag-and-GTFO-of-office-thxhttps://www.techdirt.com/comment_rss.php?sid=20181217/14375941252Mon, 17 Dec 2018 15:41:00 PSTWhy Is Congress Trying To Pass An Obviously Unconstitutional Bill That Would Criminalize Boycotts Of Israel?Mike Masnickhttps://www.techdirt.com/articles/20181217/07265541244/why-is-congress-trying-to-pass-obviously-unconstitutional-bill-that-would-criminalize-boycotts-israel.shtml
https://www.techdirt.com/articles/20181217/07265541244/why-is-congress-trying-to-pass-obviously-unconstitutional-bill-that-would-criminalize-boycotts-israel.shtml
As we've noted in the past on articles discussing this topic, I recognize that people have very, very, very strong views on both Israel and the whole "BDS" movement, and (trust me) you're not going to convince anyone about the rightness or wrongness of those views in our comments. However, even if you support the Israeli government fully, and think the BDS movement is a sham, hopefully you can still agree that an American law criminalizing supporting the BDS movement is blatantly unconstitutional.

It is true, if horrifying, that a bunch of states have passed such laws, all of which are quite clearly unconstitutional as well. Challenges to the state laws in Kansas and Arizona have already been (easily) successful. There are other legal challenges against the other laws, and they will almost certainly be tossed out as well.

Earlier versions of the Israel Anti-Boycott Act would have made it a crime — possibly even subject to jail time — for American companies to participate in political boycotts aimed at Israel and its settlements in the occupied Palestinian territories when those boycotts were called for by international governmental organizations like the United Nations. The same went for boycotts targeting any country that is “friendly to the United States” if the boycott was not sanctioned by the United States.

Last week, the ACLU saw an updated version being considered for inclusion in the spending bill (though this text is not publicly available). While Hill offices claim the First Amendment concerns have been resolved, and potential jail time has indeed been eliminated as a possible punishment, the bill actually does nothing to cure its free speech problems. Furthermore, knowingly violating the bill could result in criminal financial penalties of up to $1 million. Were this legislation to pass, federal officials would have a new weapon at their disposal to chill and suppress speech that they found objectionable or politically unpopular.

Boycotts are clearly a freedom of expression issue. The entire point of these kinds of boycotts are to express your views on something happening in the world. To say that it's illegal to support a boycott is crazy. And it's even crazier that the US would pass such a law banning the boycott of a foreign country. This is made even crazier by the fact that it's quite obviously legal to call for a boycott of a state within the US. The Intercept's recent article highlights the insanity of this situation using NY Governor Andrew Cuomo:

One of the first states to impose such repressive restrictions on free expression was New York. In 2016, Democratic Gov. Andrew Cuomo issued an executive order directing all agencies under his control to terminate any and all business with companies or organizations that support a boycott of Israel. “If you boycott Israel, New York State will boycott you,” Cuomo proudly tweeted, referring to a Washington Post op-ed he wrote that touted that threat in its headline.

As The Intercept reported at the time, Cuomo’s order “requires that one of his commissioners compile ‘a list of institutions and companies’ that — ‘either directly or through a parent or subsidiary’ — support a boycott. That government list is then posted publicly, and the burden falls on [the accused boycotters] to prove to the state that they do not, in fact, support such a boycott.”

So, according to Cuomo, you must boycott North Carolina and Indiana, but it's a crime to boycott Israel. That's... messed up.

Again, even if you think that the BDS movement is really anti-Semitic, you should at least be able to understand the serious First Amendment problems with any such law. And the idea that Congress might try to slip something through during the lameduck session before the new Congress starts suggests even they know how ridiculous such a law would be.

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]]>don't-be-ridiculoushttps://www.techdirt.com/comment_rss.php?sid=20181217/07265541244Mon, 17 Dec 2018 10:44:00 PSTFCC's O'Rielly Keeps Claiming, With Zero Evidence, That Community Broadband Is An 'Ominous' Threat To Free SpeechKarl Bodehttps://www.techdirt.com/articles/20181214/09090241227/fccs-orielly-keeps-claiming-with-zero-evidence-that-community-broadband-is-ominous-threat-to-free-speech.shtml
https://www.techdirt.com/articles/20181214/09090241227/fccs-orielly-keeps-claiming-with-zero-evidence-that-community-broadband-is-ominous-threat-to-free-speech.shtml
So back in October, we noted how FCC Commissioner Mike O'Rielly attended an event where he falsely claimed that towns and cities that decide to build their own broadband networks (usually due to market failure) were somehow engaged in an "ominous" assault on free speech. The only "evidence" O'Rielly provided was that community ISPs include language in their terms of service preventing users from being hateful shits online, the same exact language you'll find in the TOS' from any number of private ISPs, from Comcast to AT&T.

There's absolutely no evidence that any of the 750 towns and cities that have tinkered with this idea ever trampled anybody's free speech rights.

Yet after being criticized by several press outlets (including this one), O'Rielly apparently decided his best bet would be to... double down on his false claims. In a new blog post over at the FCC website, O'Rielly again tries to insist that community broadband is a giant threat to free speech, but this time he attempts to vastly expand his argument in a bid to make it sound more logical. The tap dancing around his lack of evidence in his original claim is particularly amusing:

Bizarrely, my critics further responded that I had failed to provide historical “evidence” of First Amendment mischief by muni networks. Perhaps they were confused about how a constitutional violation works. A state action or law can violate the First Amendment as applied or on its face. In the case of the latter, the law or act is always unconstitutional, and in the case of the former, it is only unconstitutional to the extent of a particular application. My argument was not based on as-applied historical instances of censorship, but on facial grounds. That is, certain terms in the muni broadband codes I cited facially violate the First Amendment.

That's a misdirection and a dodge, though putting evidence in quotes is a nice touch.

O'Rielly's right on one point: some fully government-owned community ISPs could face legal challenge for trying, as government operators, to censor hate speech via mouse print. As government operators, community ISPs actually have a greater Constitutional burden to avoid censoring content online than their private counterparts (a major reason, you'll note, that none have actually tried). That said, as local operations that have to be voter approved, community ISPs also have more direct accountability to the communities they serve. Certainly more than a company like Comcast or AT&T.

O'Rielly's problem is he then takes his core tenet to make a false claim: that because some community ISP mouse print isn't legally sound, allowing community broadband to exist threatens free speech.

Recall, O'Rielly's original speech argued that these ISPs have "have engaged in significant First Amendment mischief." And again, that never happened. It might also be worth noting that one of the ISPs O'Rielly singled out was Chattanooga's EPB, the government utility and broadband ISP Consumer Reports just rated the best broadband provider in America. Throughout eighteen paragraphs, O'Rielly still can't provide a single instance of hard evidence to support his original claim.

There's also a lot of components to the community broadband conversation O'Rielly's rambling post makes it clear he'd rather not talk about.

The biggest thing O'Rielly would prefer people not understand is that community broadband is an organic response to market failure. It's a group of angry voters, after decades of being ignored by private ISPs like Comcast, deciding to either build a broadband network themselves, or strike a public private partnership with a company like Tucows or some other private operator. Obviously giant, entrenched incumbent ISPs have never much liked this threat of added competition. Neither have the lawmakers and politicians that generally act as a rubber stamp to those interests.

As such, demonizing such operations as "government run amok" -- as opposed to real human beings with legitimate grievances expressing their democratic rights -- has long been the fashion trend among folks like O'Rielly. And you certainly shouldn't point out to O'Rielly that studies show such community-run networks tend to offer better service, lower prices, and more transparency in billing than most incumbent ISPs. Dismissing this entire trend as "a perverse form of socialism" shows a painful misunderstanding of what's actually happening.

And the biggest thing O'Rielly would rather nobody talk about is his and Ajit Pai's proposed "solution" to this "problem": protectionism. For the better part of two decades, ISPs have literally written and purchased more than 21 state laws that either outright ban, or greatly hinder, the ability for towns and cities to build their own networks or strike creative broadband solutions like public/private networks. Both Pai and O'Rielly have breathlessly supported such laws, in pretty stark contrast to traditional Conservative claims of adoring "state rights" and disliking unnecessary regulatory market intervention.

Again, O'Rielly's just engaged in fear mongering in a bid to scare folks away from an organic, democratic response to decades of sketchy broadband availability and limited competition. Communities aren't getting into the broadband business because they think it's fucking fun, they're doing so because of market failure. If ISPs want to stop the rising tide of community broadband, the solution is simple: offer better, cheaper, more widely available broadband. They don't want to do that, so instead you get ample misdirection from the issue at hand, and a bizarre demonization of folks who are actually trying to fix the problem.

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]]>misdirectionhttps://www.techdirt.com/comment_rss.php?sid=20181214/09090241227Fri, 14 Dec 2018 10:42:16 PSTEx-Sheriff Joe Arpaio Claims Three Publications Did $300 Million In Damage To His Pristine ReputationTim Cushinghttps://www.techdirt.com/articles/20181212/20420041215/ex-sheriff-joe-arpaio-claims-three-publications-did-300-million-damage-to-his-pristine-reputation.shtml
https://www.techdirt.com/articles/20181212/20420041215/ex-sheriff-joe-arpaio-claims-three-publications-did-300-million-damage-to-his-pristine-reputation.shtmlFormer sheriff (and ongoing blight on the state of Arizona) Joe Arpaio has decided to sue a handful of new agencies for defamation. The slightly-overwrought press release from FreedomWatch (and founder Larry Klayman) alleges defamation per se on the part of CNN, the Huffington Post, and Rolling Stone and claims these three publications caused $300.5 million in damage to Arpaio's otherwise impeccable reputation.

"It's time that someone stood up to the Left's 'Fake News' media, which is bent on destroying anyone who is a supporter of the president and in particular Sheriff Arpaio. My client will not be bullied by the likes of Jeff Zucker, Chris Cuomo, the Huffington Post, and Rolling Stone, as he alone has the courage to stand up for not just himself, the President of the United States but also all fair-minded and ethical Americans."

Ok, then. If you think the lawsuit itself is a much more buttoned-down affair, then you haven't read a Larry Klayman complaint before. It starts with the usual stuff establishing standing before getting down to the focus of the complaint. The alleged defamation committed by all three defendants is referring to Joe Arpaio as a "convicted felon" when his only conviction was for a misdemeanor. Rolling Stone issued a correction but the other two defendants haven't corrected their original misstatements. Hence the lawsuit -- Arpaio and Klayman's public attempt to stick it to the "Left Fake News media."

Here's why Arpaio feels he's owed $300 million for a couple of standing misstatements. Running for an open US Senate seat must pay really well.

Plaintiff Arpaio’s chances and prospects of election to the U.S. Senate in 2020 have been severely harmed by the publication of false and fraudulent facts in the Defamatory Article. This also harms Plaintiff financially, as his chances of obtaining funding from the Republican establishment and donors for the 2020 election have been damaged by the publication of false and fraudulent representations in the Defamatory Article.

Given the pardon issued to him by the Republican president currently in office, it seems unlikely his reputation suffered any damage from these incorrect statements. If anything, it only further damaged the reputation of these publications, at least in the eyes of Arpaio supporters (which presumably includes a sizeable percentage of Republican voters).

Arpaio managed to survive hundreds of self-inflicted reputational wounds during his years as sheriff, so it's a bit of a stretch to claim three "fake news" sources have done anything more than further cement his reputation as a martyr to the cause.

Arpaio also claims this has damaged his reputation within the law enforcement community. Again, it seems unlikely to have budged the needle there either. Law enforcement agencies tend to view the press with the same suspicion Arpaio does and probably agree the ex-sheriff was persecuted rather than prosecuted.

Nevertheless, there's potential money to be made. And Klayman, representing Arpaio, isn't above using a federal lawsuit as soapbox. At times, the complaint [PDF] more resembles a transcript of a YouTube monologue than a statement of facts and allegations.

Defendants are aware of these prospective business relationships and thus, given their malice and leftist enmity of Arpaio sought to destroy them with the publication of the subject Defamatory Publications.

Defendants published the Defamatory Publications to influence the RNC, the RNCC and affiliated political action committee and persons, and other donors, to withhold funding for Plaintiff Arpaio’s 2020 political campaign by smearing and destroying his reputation and standing in his law enforcement, government and political community.

Plaintiff Arpaio has been harmed as to his reputation as “America’s Toughest Sheriff” and financially by the publication of the Defamatory Article.

[insert fire emoji]

While it's true publications got the facts wrong, Joe Arpaio is an extremely public person. This raises the bar he must meet to succeed in this lawsuit. While the publications may have been careless in incorrectly noting the level of the offense that Arpaio was convicted for, that's not nearly enough to secure a favorable ruling.

Arpaio's reputation has been leaking hit points for a long time, but it has never affected his popularity with his presumed voter base. The rest of America may hate "America's Toughest Sheriff," but his supporters can't get enough of him. Three mistakes by three publications is unlikely to have caused $300-worth of damage to the ex-sheriff's Senatorial chances, much less $300 million. Some people are just defamation-proof and it's a good bet Joseph Arpaio is one of them.

Arpaio's welcome to waste the court's time and his own money claiming the "fake news" media dinged his rust bucket of a reputation, but he's not going to be happy when the court apprises him of the above facts. The problem is these three publications will have to spend some money of their own defending against a seriously weak lawsuit. With the DC circuit having decided it doesn't need to apply the District's own anti-SLAPP law to federal cases, it's likely the defendants will be stuck with covering their own costs, even if they prevail. On top of that they'll have to deal with an opposing counsel with a penchant for pissing off judges and treating the courtroom like a heated Periscope broadcast. It's a waste of everyone's time and money but Klayman's. I'm pretty sure he didn't take this on contingency.

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]]>exponential-thinkinghttps://www.techdirt.com/comment_rss.php?sid=20181212/20420041215Fri, 14 Dec 2018 09:40:00 PSTSuper Injunction Silences News About Vatican Official's Child Molestation Conviction, And That's BullshitMike Masnickhttps://www.techdirt.com/articles/20181213/17092441222/super-injunction-silences-news-about-vatican-officials-child-molestation-conviction-thats-bullshit.shtml
https://www.techdirt.com/articles/20181213/17092441222/super-injunction-silences-news-about-vatican-officials-child-molestation-conviction-thats-bullshit.shtml
We've written in the past about things like "super injunctions" in the UK and elsewhere that often put a huge and near absolute gag order on writing about a famous person enmeshed in some sort of scandal, and apparently Australia has such a thing as well -- and it's now scaring off tons of publications from writing about the fact that George Pell, the Vatican's CFO and often called the "3rd most powerful person in the Vatican" was convicted on all charges that he sexually molested choir boys in Australia in the 1990s. However, the press is barred from reporting on it based on one of those gag orders. The Herald Sun in Australia did post a brilliant, Streisand Effect-inducing front page display about how it was being censored from publishing an important story:

The secrecy surrounding the court case — and now the verdict — is offensive. That’s especially so because it echoes the secrecy that has always been so appalling a part of widespread sexual abuse by priests.

That has changed a great deal in recent years — in part because of the Boston Globe’s Pulitzer Prize-winning investigation in 2002 that broke open a global scandal and was the subject of the Oscar-winning film “Spotlight.” (Current Washington Post Executive Editor Martin Baron was executive editor at the Globe at that time.)

But clearly, it hasn’t changed entirely. And the news media shouldn’t be forced to be a part of keeping these destructive secrets.

Steven Spaner, Australia coordinator from the Survivors Network of Those Abused by Priests told the Daily Beast he felt frustrated and left “in the dark” because of the suppression of news about Pell.

“It’s hard to know if there are any shenanigans going on — things the church did that are illegal themselves,” he said. “There is always suspicion when you don’t know what is going on.”

The story itself was actually broken by The Daily Beast (first link up top), but as that site's editor told Sullivan at the Washington Post, they were a bit worried about doing so:

Editor in chief Noah Shachtman told me that he waded carefully into the dangerous legal waters.

“We understood there could be legal, and even criminal, consequences if we ran this story,” said. “But ultimately, this was an easy call. You’ve got a top Vatican official convicted of a horrific crime. That’s major, major news. The public deserves to know about it.”

Shachtman said the Daily Beast did its best to honor the suppression order, consulting with attorneys here and in Australia, and even “geo-blocking” the article so that it would be harder to access in Australia, and keeping headlines “relatively neutral.”

If you do look around, there are a bunch of news articles, including some in Australia, all published after the verdict, talking about how the Pope has "removed" Pell from his "inner circle" and hinting at "historical sexual offences" but not saying that he's been convicted. And even the news of the removal is made to sound rather benign:

A Vatican spokesman said Francis had written to the prelates “thanking them for the work they have done over these past five years”.

Or here's an article from the Australian again published after the conviction, but not mentioning a word of it, and making it sound like Pell's removal was merely his term being up:

The Vatican said it had written to Cardinal Pell and his two colleagues in late October, telling them their roles on the C9 council had expired at the end of their five-year tenure.

[....]

“In October, the Pope had written to three of the more ­elderly cardinals — Cardinal Pell from Australia, Cardinal ­Errazuriz from Chile and Cardinal Monsengwo of Congo — thanking them for their work,” he said.

“After a five-year term, these three have passed out for the ­moment.”

This story is a matter of major news significance involving an individual of global prominence. A fundamental principle of The Washington Post is to report the news truthfully, which we did. While we always consider guidelines given by courts and governments, we must ultimately use our judgment and exercise our right to publish such consequential news. Freedom of the press in the world will cease to exist if a judge in one country is allowed to bar publication of information anywhere in the world.

It seems heavily implied by this statement that the Washington Post has been contacted about its story.

Some may argue that there is, in fact, a good reason for the suppression orders. Specifically, the idea is to have trials of prominent figures be "impartial" and not influenced by media coverage. And you can understand the basic reasoning for that -- though, in this case, there is already a conviction, and that seems obviously newsworthy. The response to that argument is that Pell is still facing more such charges in another trial. I'm sympathetic to these arguments, but only to the point that I understand the emotional position from which those arguments are made. I cannot, however, agree that they are good reasons. Yes, media sensationalism around a trial can be an issue, but in the US we've been able to deal with that fairly successfully over the years with the way courts treat jurors and order them not to read the press coverage. Is it a perfect system? Nope. Not at all. But it does mostly function. On the flip side, the ability to do damage through these gag orders is immense.

Among other things, it hides the details of what's happening at the trial, and those details can really matter, as Sullivan's article quote above makes clear. In addition, only being able to reveal details way after the fact very much dilutes or even totally destroys the impact of such stories. It is much harder to make people care about this news much later, after it has been suppressed, than when it first comes out.

On top of that, all of this relies on the idea that those issuing these gag orders always do so with the best of intentions, and that's a huge leap of faith. The opportunity for mischief here is great, as we've seen in the UK with some of its super injunctions.

This kind of thing is one of the reasons why we're so concerned here about encroachments on free speech by governments. The ability to order platforms to censor material is a massively slippery slope. Indeed, in searching for the news coverage about this, I couldn't find any of the actual coverage of the convictions on Google News. I could only find the stories about the much more tame "removed from the inner circle." It may be that Google News algorithms picked up on that story more prominently (in part because there are many more such stories) or it could be because Australia has told Google News not to post such stories. At the very least, it's ambiguous and concerning.

Having a free and open press is a pretty key aspect of democracy. Australia is making it clear that it doesn't buy into that, and tragically, it's leading to new publications around the world choosing not to report on a huge story with immense public impact.

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]]>blatant-censorshiphttps://www.techdirt.com/comment_rss.php?sid=20181213/17092441222Thu, 13 Dec 2018 10:44:00 PSTArkansas Politician Introduces Bill To Make It Illegal For Social Media Companies To Block Content He LikesTim Cushinghttps://www.techdirt.com/articles/20181212/09135141207/arkansas-politician-introduces-bill-to-make-it-illegal-social-media-companies-to-block-content-he-likes.shtml
https://www.techdirt.com/articles/20181212/09135141207/arkansas-politician-introduces-bill-to-make-it-illegal-social-media-companies-to-block-content-he-likes.shtmlArkansas state rep Johnny Rye is in galaxy mind mode. He's introduced a bill that aims to stop "censorship" by social media platforms by allowing the government to compel speech. I'm sure the irony is lost on Rye. But it's probably not the only thing sailing over Rep. Rye's head. (h/t Sarah McLaughlin)

What Rye is trying to stop is social media companies moderating their own platforms. He appears to feel conservatives are being "censored" by Facebook, Twitter, etc. and thinks rolling over the First Amendment and Section 230 immunity is going to cure this perceived ill.

Holy hell, the bill [PDF] is a mess. I'm going to have to quote from it at length because it's the only way any discussion of it can achieve semi-coherence. Here's the gist of it, from David Ramsey of the Arkansas Times:

The bill would allow plaintiffs to seek damages of a minimum of $75,000 "per purposeful deletion or censoring of the social media website user's speech" plus actual damages and punitive damages if aggravating factors are present. Only social media companies with at least 75 million subscribers would be subject to Rye's bill.

The owner or operator of a social media website who resides in this state is subject to a private right of action by a social media website user if the social media website purposely:

(i) Deletes or censors a social media website user's religious or political speech; or

(ii) Uses an algorithm to suppress religious or political speech.

How does Rep. Rye get around the fact that private companies can moderate content on their platforms however they'd like without it being "censorship?" Easy. He just unilaterally declares Facebook, et al to be "public utilities." Problem solved.

A social media website is considered a public utility under this section.

Pretty cool. I didn't know writing worked that way. Let me see if I've got the hang of this…

Rep. Rye is considered a nuisance and threat to public safety under this section.

Now I just need to send the cops around to restore public safety by taking Rep. Rye out of the rotation.

The good news is social media companies can limit the monetary damages by restoring/uncensoring posts a user complains about. (Presumably using an in-court complaint form, rather than the site's online forms.) There's your compelled speech, which is just another misshapen cherry on the top of shit sundae.

Here's Rye's tiny concession to the First Amendment, which isn't really a concession, nor even compliant with the First Amendment. This must be Rye's idea of "narrow crafting."

A social media website is immune from liability under this section if it deletes or censors a social media website user's speech or uses an algorithm to disfavor or censure speech that calls for immediate acts of violence, is obscene, or pornographic in nature.

Rye is generously allowing platforms to engage in the sort of moderation they already engage in. They're free to moderate certain kinds of speech, just not the kind of speech Rye likes. And if users aren't willing to sue over "censorship" themselves, the state is empowered to draw inferences on their behalf.

The Attorney General may bring a civil cause of action under this section on behalf of social media website users who reside in this state whose religious speech or political speech has been censored by a social media website.

If you're wondering why Rep. Rye has crafted this monument to his own stupidity, David Ramsey has your answer:

Rye's bill comes in the same week that Sen. Jason Rapert vociferously complained about being temporarily barred from sending tweets by Twitter. A tweet that Rapert sent out regarding Muslims was found by the company to violate its "hateful conduct policy." The company imposed a timeout that lasted at least 12 hours, according to a printout of Twitter's communication that Rapert held up to the camera in a Facebook Live post. The offending tweet has apparently been removed.

And he's looking for even more internet regulation, this time under the guise of fighting sex trafficking. This bill [PDF] would ban anyone from selling any devices that access the internet without pre-installed "blocking software." This is at least as batshit as his social media censorship proposal.

A distributor shall not in this state manufacture, sell, offer for sale, lease, or distribute a product that makes content accessible on the internet unless the product:

(B) Prohibits access to content that is prohibited under this chapter;

(C) Prohibits access to revenge pornography;

(D) Prohibits access to a website that facilitates prostitution; and

(E) Prohibits access to a website that facilitates human trafficking.

The list of "prohibited content" includes revenge porn, "specified anatomical areas," and obscene material. The reseller or manufacturer violating this law is subject to a $500 fine… wait for it:

...for each prohibited image, video or audio depiction, or website found to be accessible at the time of the offense.

On top of adding new software to their devices, resellers and manufacturers will also foot the bill for a 24/7 complaint hotline to report overblocking/underblocking.

The good news (I guess) is that Arkansans still have the option to see turgid penises and whatnot. All they have to do is pay $20 and state, in writing, that they're above the age of 18 and definitely want to see as many "specified anatomical areas" as possible. Proof of age must also be submitted. The bill does not specify whether this will restore access to revenge porn or trafficked humans, but one would assume it's an all-inclusive fee.

Sex trafficking will somehow be prevented by the state AG dumping collected fines into a strongbox marked "for the children," because nothing's too on the nose for Johnny Rye:

Fines levied by a court under subdivision (a)(2)(A) of this section shall be deposited into the Safe Harbor Fund for Sexually Exploited Children.

Whew. What a time to be alive. And in Arkansas. And knowing you still have two more years before you can unceremoniously return Johnny Rye to the private sector he so very badly wants to harm.

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]]>bonus-round-of-bad-ideas-immediately-followshttps://www.techdirt.com/comment_rss.php?sid=20181212/09135141207Thu, 13 Dec 2018 09:33:08 PSTIf You're Worried About Bad EU Internet Regulation, Just Wait Until You See The New Terrorist RegulationMike Masnickhttps://www.techdirt.com/articles/20181212/17531141214/if-youre-worried-about-bad-eu-internet-regulation-just-wait-until-you-see-new-terrorist-regulation.shtml
https://www.techdirt.com/articles/20181212/17531141214/if-youre-worried-about-bad-eu-internet-regulation-just-wait-until-you-see-new-terrorist-regulation.shtml
This seems to be the year for awful internet regulation by the EU. At least there were some redeeming qualities in the GDPR, but they were few and far between, and much of the GDPR is terrible and is creating real problems for free speech online, while simultaneously, undermining privacy and giving repressive governments a new tool to go after critics. Oh, and in the process, it has only made Google that much more dominant in Europe, harming competition.

And, then, of course, there's the still ongoing debate about the EU Copyright Directive, which will also be hellish on free speech. The entire point of Article 13 in that Directive is to wipe away the intermediary liability protections that enable websites to host your content. Without such protections, it is not difficult to see how it will lead to a widespread stifling of ideas, not to mention many smaller platforms for hosting content exiting the market entirely.

But here's the thing: both of those EU regulations are absolutely nothing compared to the upcoming EU Terrorist Regulation. We mentioned this a bit back in August, with the EU Commission pushing for the rule that all terrorist content must be taken down in an hour or face massive fines and possible criminal liability. Earlier this year, Joan Barata at Stanford wrote a compelling paper detailing just how extreme parts of the proposed regulation will go.

Among the many questionable bits of the Terrorist Regulation are that it will apply no matter how small a platform is and even if they're not in the EU, so long as the EU claims they have a "significant number" of EU users. Also, if a platform isn't even based in the EU, part of the proposal would require the companies to hire a "representative" in the EU to respond to these takedown demands. If the government orders a platform to take down "terrorist" content, a platform has to take it down within an hour and then set up "proactive measures" to stop the same content from ever being uploaded (i.e., mandatory filters).

Oh, and of course, this mechanism for rapid and permanent censorship based solely on the government's say so, has... a ridiculously vague "definition" of what counts as "terrorist content."

'terrorist content' means one or more of the following information:

(a) inciting or advocating, including by glorifying, the commission of terrorist
offences, thereby causing a danger that such acts be committed;
(b) encouraging the contribution to terrorist offences;
(c) promoting the activities of a terrorist group, in particular by encouraging the
participation in or support to a terrorist group within the meaning of Article
2(3) of Directive (EU) 2017/541;
(d) instructing on methods or techniques for the purpose of committing terrorist
offences.

Recently, a large group of public interest groups sent a letter to EU regulators laying out in great detail all of the problems of the regulation. I'm going to quote a huge chunk of the letter, because it's so thorough:

Several aspects of the proposed Regulation would significantly endanger freedom of expression and information in Europe:

Vague and broad definitions: The Regulation uses vague and broad definitions to describe ‘terrorist content’ which are not in line with the Directive on Combating Terrorism. This increases the risk of arbitrary removal of online content shared or published by human rights defenders, civil society organisations, journalists or individuals based on, among others, their perceived political affiliation, activism, religious practice or national origin. In addition, judges and prosecutors in Member States will be left to define the substance and boundaries of the scope of the Regulation. This would lead to uncertainty for users, hosting service providers, and law enforcement, and the Regulation would fail to meet its objectives.

‘Proactive measures’: The Regulation imposes ‘duties of care’ and a requirement to take ‘proactive measures’ on hosting service providers to prevent the re-upload of content. These requirements for ‘proactive measures’ can only be met using automated means, which have the potential to threaten the right to free expression as they would lack safeguards to prevent abuse or provide redress where content is removed in error. The Regulation lacks the proper transparency, accountability and redress mechanisms to mitigate this threat. The obligation applies to all hosting services providers, regardless of their size, reach, purpose, or revenue models, and does not allow flexibility for collaborative platforms.

Instant removals: The Regulation empowers undefined ‘competent authorities’ to order the removal of particular pieces of content within one hour, with no authorisation or oversight by courts. Removal requests must be honoured within this short time period regardless of any legitimate objections platforms or their users may have to removal of the content specified, and the damage to free expression and access to information may already be irreversible by the time any future appeal process is complete.

Terms of service over rule of law: The Regulation allows these same competent authorities to notify hosting service providers of potential terrorist content that companies must check against their terms of service and hence not against the law. This will likely lead to the removal of legal content as company terms of service often restrict expression that may be distasteful or unpopular, but not unlawful. It will also undermine law enforcement agencies for whom terrorist posts can be useful sources in investigations.

The European Commission has not presented sufficient evidence to support the necessity of the proposed measures. The Impact Assessment accompanying the European Commission’s proposal states that only 6% of respondents to a recent public consultation have encountered terrorist content online. In Austria, which publishes data on unlawful content reports to its national hotline, approximately 75% of content reported as unlawful were in fact legal. It is thus likely that the actual number of respondents who have encountered terrorist content is much lower than the reported 6%. In fact, 75% percent of the respondents to the public consultation considered the internet to be safe.

And that's not all. The UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (yup, that's the title), David Kaye, has also sent a letter warning of the problems of such a regulation on free speech. It's 14 pages long, but the key point:

...we wish to express our views regarding the overly broad definition of terrorist content in the Proposal that may encompass legitimate expression protected under international human rights law. We note with serious concern what we believe to be insufficient consideration given to human rights protections in the context of to the proposed rules governing content moderation policies. We recall in this respect that the mechanisms set up in Articles 4-6 may lead to infringements to the right to access to information, freedom of opinion, expression, and association, and impact interlinked political and public interest processes. We are further troubled by the lack of attention to human rights responsibilities incumbent on business enterprises in line with the United Nations Guiding Principles on Business and Human Rights.

In other words, yet another European regulation targeting internet companies (many of whom are not based in Europe) that will ultimately lead to (1) greater censorship (2) more consolidation by internet giants, as smaller platforms won't be able to compete, and (3) massive "unintended" consequences for the internet as a whole.

Maybe it's time we just kick the EU off the internet. Let them build their own.

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]]>bye-bye-free-speech-onlinehttps://www.techdirt.com/comment_rss.php?sid=20181212/17531141214Thu, 13 Dec 2018 03:27:14 PSTFederal Court Says Massachusetts' Wiretap Law Can't Be Used To Arrest People For Recording Public OfficialsTim Cushinghttps://www.techdirt.com/articles/20181212/10482441210/federal-court-says-massachusetts-wiretap-law-cant-be-used-to-arrest-people-recording-public-officials.shtml
https://www.techdirt.com/articles/20181212/10482441210/federal-court-says-massachusetts-wiretap-law-cant-be-used-to-arrest-people-recording-public-officials.shtmlSeven years ago, the First Circuit Court of Appeals released its Glik decision. This decision found that recording public officials was protected by the First Amendment, overriding Massachusetts state law. The state wiretap law says recordings must have consent of everyone captured on the recording. The Appeals Court said recording police officers while they performed their duties in public was clearly covered by the First Amendment. The opinion also dealt with some ancillary Fourth Amendment issues, but seemingly made it clear these recordings were protected activity.

The law remained on the books unaltered. Thanks to legislative inaction, the law is still capable of being abused. Since the Appeals Court didn't declare the law unconstitutional, or even this application of it, it has taken another federal court decision nearly a decade later to straighten this out. (h/t Courthouse News Service)

The ruling [PDF] deals with two First Amendment cases. One deals with activists recording cops. The other deals with another set of activists -- James O'Keefe's Project Veritas -- and its secret recording of Democratic politicians. The specifics might be a bit different, but the outcome is the same: recording public officials is protected by the First Amendment. The state law is unconstitutional.

Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions.

The Court declares Section 99 unconstitutional insofar as it prohibits audio recording of government officials, including law enforcement officers, performing their duties in public spaces, subject to reasonable time, place, and manner restrictions. The Court will issue a corresponding injunction against the defendants in these actions.

The court also points out the state government's response to the Glik ruling was wrong. The ruling did not limit itself to "openly" recording public officials. It said the First Amendment protected the recording of public officials performing public duties whether or not government officials knew they were being recorded.

In October 2011, the bulletin was accompanied by a memo from the Commissioner citing the Glik decision. The memo instructs officers that “public and open recording of police officers by a civilian is not a violation” of Section 99. The cover memo for the May 2015 recirculation “remind[s] all officers that civilians have a First Amendment right to publicly and openly record officers while in the course of their duties.”

[...]

But Glik did not clearly restrict itself to open recording. Rather, it held that the First Amendment provides a “right to film government officials or matters of public interest in public space.”

The court says siding with the government's interpretation would just result in more bogus arrests under the state's wiretap law.

But the training materials go beyond telling officers when it is impermissible to arrest; taking a narrow construction of Glik, they also communicate that it is permissible to arrest for secretly audiorecording the police under all circumstances. In other words, it gives the green light to arrests that, as the Court holds below, are barred by Glik.

This ruling should put an end to that. You'd think the last ruling would have done the job, but despite the Appeals Court never ruling that secret recordings of public officials were illegal, the state decided to interpret the decision this way, leading directly to the lawsuits requiring the record to be set one more time, seven years down the road.

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]]>because-duh-this-was-decided-seven-years-agohttps://www.techdirt.com/comment_rss.php?sid=20181212/10482441210Wed, 12 Dec 2018 15:36:00 PSTSchool Boots Professor Off Campus After He Exposes Its Complicity In Predatory Publishing SchemesTim Cushinghttps://www.techdirt.com/articles/20181209/14574841190/school-boots-professor-off-campus-after-he-exposes-complicity-predatory-publishing-schemes.shtml
https://www.techdirt.com/articles/20181209/14574841190/school-boots-professor-off-campus-after-he-exposes-complicity-predatory-publishing-schemes.shtmlPredatory publishing -- the pay-for-play practice that allows anyone to have their research published as soon as the check clears -- may end up costing a professor his job. Derek Pyne, associate professor of economics at British Columbia's Thompson Rivers University, has managed to turn his own campus against him simply for telling the uncomfortable truth.

His 2017 paper, The Rewards of Predatory Publication at a Small Business School, exposed the ugly side effects of the constant pressure on researchers and academics to be published. "Publish or perish," the saying goes. And if you can't get published by someone who thinks your research is worth publishing, get published by someone who thinks everyone with enough cash on hand deserves to be published.

What Pyne found was schools rewarding publication, whether or not the publication was bought and paid for.

It finds that the majority of faculty with research responsibilities at a small Canadian business school have publications in predatory journals. In terms of financial compensation, these publications produce greater rewards than many non-predatory journal publications. Publications in predatory journals are also positively correlated with receiving internal research awards.

As a result of that 2017 paper and the media attention that followed, Pyne says, he’s been effectively banned from campus since May. He may visit only for a short list of reasons, such as health care. Teaching is out and so, too, is the library. It’s unclear when, or if, Pyne will be allowed to resume his normal duties.

This isn't the only thing Pyne has done to piss off his colleagues. He's also engaged in a number of heated arguments with faculty about the quality of the school's grad programs and brought his numerous complaints to the press. Administrators claimed coworkers were afraid of him and demanded he undergo a psychological evaluation. His keys were taken and he was banned from campus. Pyne cleared the psych eval -- one that found (understandably) Pyne felt persecuted by his employer. He's now back on the payroll, but has been told to "cease communicating inappropriate, defamatory and insubordinate statements" about the school.

Fortunately, Pyne has a few allies. Retraction Watch -- an essential site with zero sympathy for predatory publications -- is now involved in Pyne's fight against the university.

Ivan Oransky, Distinguished Writer in Residence at New York University's Arthur Carter Journalism Institute and co-founder of Retraction Watch, has followed Pyne’s case for over a year. He said recently that he was “puzzled” about “what's actually going on. It's not very helpful when a university takes action like this but doesn't say why.”

That's why Retraction Watch has argued for the release of university investigations, he said, citing an article on why Cornell University hasn’t released its findings in the Brian Wansink research misconduct case, among other similar incidents elsewhere.

He also has some free speech warriors of the Canadian variety helping him out.

Canada's Society for Academic Freedom and Scholarship has appealed to Thompson Rivers on Pyne's behalf. The Canadian Association of University Teachers, similar to American Association of University Professors, is also looking into the case.

Thompson Rivers has refused to participate in that investigation so far, David Robinson, CAUT’s executive director, said recently.

“This is a very peculiar case,” Robinson said. “But certainly criticizing colleagues’ research or his administration is intramural speech protected by academic freedom. These are matters of educational quality. He may be correct, or he may not be correct. But he certainly has a right to express his views on educational quality.”

Entities that can't handle criticism love shooting the messenger -- especially when that messenger is pointing out the university's willingness to reward quantity over quality. Whatever reputational damage the school and its pay-for-play professors are suffering isn't the result of defamation or inappropriate statements from Pyne. It's a direct result of their actions and the incentives the university employs. The university says it will reward educators who publish. And those educators are hastily shoving receipts from sketchy publications into their pockets as they make cases for merit raises. The university could have responded by altering its incentive programs, and those stung by Pyne's research could have acknowledged their gaming of the system. Instead, they're doing this, which is unfortunate, but also just as unfortunately, unsurprising.